TAYLOR v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT [2021] NZCA 329

TAYLOR v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT[2021] NZCA 329 [23 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA287/2020[2021] NZCA 329BETWEEN LILLIAN ALICE TAYLORAppellantAND THE ATTORNEY-GENERAL ON BEHALFOF THE MINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 17 June 2021Court: Courtney, Mander and Hinton JJCounsel: Appellant in PersonM J Bryant and S Deng for RespondentJudgment: 23 July 2021 at 10 amJUDGMENT OF THE COURTA The appeal is dismissed.B We make no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Lillian Taylor has a longstanding concern about the way the Ministry of SocialDevelopment (MSD) calculates benefit entitlements for people with disabilities. Herconcern relates particularly to the calculation of entitlements for additional powerusage required as a result of disability, such as the need for extra heating. AlthoughMs Taylor is entitled to such benefits, her concern extends beyond her own entitlement— she is concerned about the effect of the MSD's conduct on people with disabilitiesgenerally.[2] Ms Taylor brought judicial review proceedings against the MSD in an effort toventilate this issue. Brewer J dismissed the proceedings.1 Ms Taylor appealsBrewer J's decision. She also seeks to appeal decisions made by both judicial officersand Registry staff leading up to the determination of the judicial review proceedings.In this decision we deal only with the appeal against Brewer J's decision.2[3] The scope of the appeal and the grounds advanced by Ms Taylor werecontentious. We address them after recording the background to the case.Interlocutory application for discovery[4] Shortly before the hearing scheduled for the appeal Ms Taylor filed a documententitled "interlocutory application for orders" in which she gave notice of a variety ofapplications, only one of which was amenable to being dealt with in the context of theappeal. That was the order sought for discovery of a MSD file note dated29 September 2016. In fact this document was already in Ms Taylor's possession; itwas included in a bundle of documents that she sought to hand up on the morning ofthe hearing. It is clear that what Ms Taylor really meant by her interlocutoryapplication was that she was seeking to adduce further evidence, particularly the MSDfile note. At the outset of the hearing we could not immediately see the relevance ofthat document but accepted the bundle on the basis we would consider that issue aspart of the overall determination of the appeal.[5] Subsequent to the hearing of the appeal Ms Taylor filed a memorandumadvising that the interlocutory application was withdrawn. The MSD has indicated1 Taylor v Attorney-General on behalf of the Ministry of Social Development [2020] NZHC 852[Decision under appeal].2 The other decisions, recorded in minutes of Judges or decisions of Deputy Registrars, are notmatters on which a right of appeal exists. Leave is required to appeal a decision of the High Courton an interlocutory matter: Senior Courts Act 2016, s 56(3). Where administrative decisions havebeen made in court correspondence there is no right of appeal: s 56(1).that it does not seek costs on the application. We do not need to consider the matterfurther.Background to the judicial review proceedingsCalculating the Disability Allowance and Temporary Additional Support[6] Under the Social Security Act 1964 (SSA) a disability allowance can be paidto a person who has additional expenses of an ongoing kind arising from theirdisability.3 The SSA also provides for temporary additional support (TAS) as a lastresort to help people meet "essential costs" that cannot be met from their income orother resources (including a disability allowance).4 "Essential costs" include "regularessential expenses".5 An essential expense is an expense that is essential for a personto meet their daily living needs.6 This can include "disability costs", which include"disability-related expenses, being expenses of a kind for which a disability allowance would be payable".7[7] The MSD has a Manuals and Procedures (MAP) document for staff to use inassessing a person's power cost component of their disability allowance (i.e. thatperson's additional power costs arising from their disability). It includes a seven-stepformula which compares a person's actual power usage to an estimate obtained usingthe "Powerswitch" calculator of normal power usage of a similar sized household.8 Ifa person's power usage exceeds the estimate of the normal power usage of a similarsized household then this amount is the additional power usage included in thecalculation of the person's disability allowance.3 Social Security Act 1964 [SSA 1964], s 69C. See also Social Security Act 2018 [SSA 2018], s 85.At the time Ms Taylor filed her claim the SSA 1964 was in force. That Act was repealed on26 November 2018 by s 455(1) of the SSA 2018.4 SSA 1964, s 61G; and Social Security (Temporary Additional Support) Regulations 2005 [TASRegulations 2005], sch 1, cl 3(a). See also SSA 2018, ss 95 and 96.5 SSA 1964, s 61G(7); and TAS Regulations 2005, sch 2, cl 1.6 TAS Regulations 2005, sch 2, cl 2.7 Regulation 4 and sch 2, cl 3(e).8 The Powerswitch website is owned and operated by Consumer New Zealand to provide a freemeans by which people can compare electricity and gas prices.Whata J's decision[8] Ms Taylor is eligible for a disability allowance and for TAS because her regularongoing disability costs exceed her maximum entitlement to a disability allowance.Ms Taylor's need for extra additional power as a consequence of having a disability ismet through the disability allowance and TAS.[9] In 2013 the MSD reduced the amount of additional power included in theassessment of Ms Taylor's disability costs. This had the result of reducing the TASpayable to her. Ms Taylor considered that the MSD had used the wrong comparisonfigure on the Powerswitch calculator to calculate her actual power use compared withan average similar sized household. The decision was reviewed by a Benefits ReviewCommittee (BRC) which allowed a further $0.96 per week.[10] Ms Taylor appealed to the Social Security Appeal Authority (the Authority).The Authority accepted that Ms Taylor needed additional power as a result of herdisability. It considered the various mechanisms for assessing her usage and directedthat her additional power costs for the year commencing 8 November 2013 should beassessed not by reference to the Powerswitch calculator but instead on the basis thather additional power costs be treated as 15 per cent of her total usage.9[11] Ms Taylor appealed that decision by way of case stated to the High Court.Relevantly, she maintained that the MAP process had not been correctly implementedin terms of the Powerswitch calculator and there was no evidence to support the15 per cent methodology. Whata J held that the MSD was not required to follow theMAP process, which existed to provide internal guidance and did not bind the MSDor give rise to any legitimate expectation that it would be followed, including inrelation to the Powerswitch calculator.10 He held that the Authority had a broaddiscretion to arrive at a disability allowance that was fair and practicable and that ithad done so on the basis of the available evidence.11 The Judge therefore dismissedthe appeal.9 An appeal against a decision of a Benefits Review Committee [2015] NZSSAA 24.10 Taylor v Chief Executive of the Ministry of Social Development [2016] NZHC 1160 at [34].11 At [37].[12] Ms Taylor applied unsuccessfully to this Court for leave to appeal the decisionof Whata J.12 Brown J, for the Court, considered that the proposed appeal did not raiseany matter of general or public importance.Subsequent developments[13] In September 2016 the MSD reassessed Ms Taylor's disability allowanceentitlement. But it failed to follow the Authority's decision (which had been upheldby Whata J) that Ms Taylor's additional power costs should be assessed on the basisof 15 per cent of her total usage. It wrongly removed the power costs from thedisability allowance costs (the September 2016 decision). Ms Taylor sought a reviewof the September 2016 decision.[14] On 31 October 2016 the MSD reassessed the position and advised Ms Taylorthat her disability allowance and TAS would increase (the October 2016 decision).Ms Taylor was advised that if she did not agree with the decision she could ask for areview of it and that she should advise of any changes in her circumstances that couldaffect her payments.13[15] In a subsequent letter dated 22 November 2016, the MSD advised the outcomeof its (internal) review of the September 2016 decision. The outcome reflected theletter of 31 October 2016, though, confusingly, did not refer to that letter.[16] The matter proceeded to the BRC for review of the September 2016 decision.The report of the BRC dated 11 July 2017 recorded its decision "to overturn thedecision dated 29 September 2016 and to allow the Applicants [sic] expense for extraelectricity costs as 15% of her total electricity cost".[17] Ms Taylor appealed the BRC decision to the Authority. The Authority madepre-hearing directions on 30 January 2018 including that "the High Court decision isbinding on the Authority whether or not [Ms Taylor] accepts it" and that "[t]herefore,12 Taylor v Chief Executive of the Ministry of Social Development [2016] NZCA 489.13 The MSD evidence was that Ms Taylor had sought a review of the October 2016 decision, thoughthere was no document showing that.raising the same arguments before this Authority will have a predictable outcome".Ms Taylor withdrew her appeal before the hearing date.[18] That was the state of affairs when Ms Taylor commenced the present judicialreview proceedings.The case in the High CourtApplication to strike out the judicial review proceedings[19] Ms Taylor's judicial review proceedings were brought against a number ofother defendants in addition to the MSD. Edwards J determined an application by thedefendants to strike out the proceedings.14 The Judge recorded that Ms Taylor'scomplaints were "wide-ranging, but at the heart of them is a concern about themethodology used to calculate her Disability Allowance and Temporary AdditionalSupport payments, and in particular, her additional power costs".15 Edwards Jaccepted that the MSD's use of the Powerswitch calculator was amenable to judicialreview16 but cautioned that:17There is no outstanding decision identified by Ms Taylor where either she, orsomeone else, is directly affected by a decision to calculate additional poweruse through the Powerswitch calculator. Identifying the exercise of a poweror a decision is a necessary pre-requisite to Ms Taylor's claim for review goingforward on this basis.[20] The Judge struck out, as an abuse of process, any claims that related to previousdeterminations already considered by the Authority and the courts. The remainderwere to be repleaded to bring them within the parameters of the Judicial ReviewProcedure Act 2016.18The surviving issues[21] Ms Taylor filed a number of amended pleadings. The MSD contended that thepleadings still did not comply with the High Court Rules 2016, including because no14 Taylor v Social Security Appeal Authority [2019] NZHC 1718 [Strike out decision].15 At [1].16 At [42].17 At [43].18 At [50].reviewable error was identified. Specifically, it maintained that the September 2016decision, which Mrs Taylor had confirmed was under challenge, could not be reviewedbecause it had been superseded by the October 2016 decision and therefore had nocurrent effect, making any challenge to it moot.[22] Eventually, Palmer J settled the following issues for hearing:19(a) Did the Authority pre-determine Ms Taylor's appeal in its pre-hearingdirection on 30 January 2018? Edwards J held this was reasonablyarguable. The claim remains in the amended statement of claim.Ms Taylor does not explicitly seek relief for this claim. But, as shesaid at the call before last in the List, and my interpretation ofparagraph [8.7] of her memorandum of 22 October 2019, she can betaken to be seeking to have the decision quashed and her appealconsidered by the Authority.(b) Did the Ministry's decision, communicated on 31 October and22 November 2016, applying the 15 per cent methodology, overlookrelevant considerations, take into account irrelevant considerations orfetter its discretion? In particular, did the Ministry fail to follow itsown internal procedures, because the 15 per cent methodology had notbecome part of its MAP process and did it fail to make allowance forthe daily line charges and assume prompt payment of power bills? Itis sufficiently clear Ms Taylor is challenging this decision, not onlythe 29 September 2016 decision. Edwards J identified fetteringdiscretion as a potential ground of review. Ms Taylor put it somewhatdifferently in the amended statement of claim. But her memorandumof 22 October 2019 effectively makes that claim in submitting theMinistry was wrong to reapply the 15 per cent methodology whichhad been set down for an earlier period and specific amount of usage.[23] Palmer J expressly identified three issues that could not be pursued in theproceedings:20(a) Ms Taylor cannot now claim that the Ministry made an error of law inits 29 September 2016 decision in its use of the Powerswitch website.That is because Edwards J found there is no such extant decision tochallenge, because it has been overturned.(b) Neither does Ms Taylor's amended statement of claim appear tochallenge decisions in relation to transport costs or accommodationloadings. Those are discussed as issues, and in relation toaccommodation, Ms Taylor appears to be seeking information abouthow the Ministry makes decisions on those issues. Such a request forinformation is not properly pursued through litigation. Rather, the19 Taylor v Social Security Appeal Authority CIV-2018-404-2129, 24 October 2019 (Minute No. 2of Palmer J) at [8] (footnotes omitted).20 At [9] (footnotes omitted).Ministry should treat the request as a request for official informationand answer it directly.(c) The reference in the amended statement of claim to an unspoken threatalso does not identify any reviewable decision so is not a claim theMinistry has to answer in the proceeding.[24] Section 14(2)(a) of the Judicial Review Procedure Act permitted Palmer J tosettle the issues that could proceed to a substantive hearing of the judicial reviewproceedings.21The hearing[25] A half-day hearing date was allocated for 24 April 2020. New Zealand wasunder COVID-19 Alert Level 4 at that time. Lang J directed that the matter proceedby telephone. Ms Taylor felt unprepared and sought an adjournment, which Lang Jdeclined. On 21 April 2020 Ms Taylor applied again for an adjournment, saying thatshe would be unable to present her case adequately by telephone (including becauseshe would need to use Powerpoint or a whiteboard presentation). Ms Taylor alsoindicated that she wished to have a jury trial and call witnesses. The next dayMs Taylor advised the Registrar by memorandum that she would be unavailable forthe hearing.[26] It is unclear how the 21 April application for adjournment was dealt with butBrewer J later recorded in his decision that he had determined that the hearing shouldproceed and if problems arose of the kind envisaged by Ms Taylor, then steps couldbe taken to address them, including adjourning the matter part-heard.22[27] Ms Taylor had filed written submissions but did not appear by telephone on theallocated date. Efforts by the Registry to contact her were unsuccessful. With theconsent of the MSD, Brewer J adjourned the Court and determined the matter on thepapers.21 Ms Taylor could have applied, but did not, for leave to appeal that order: Judicial ReviewProcedure Act 2016, s 20; and Senior Courts Act 2016, s 56.22 Decision under appeal, above n 1, at [28].Brewer J's decision[28] Brewer J was very concerned with the difficulty of identifying a justiciableissue in Ms Taylor's pleadings. However, he ultimately proceeded on the basis thatthe October 2016 decision was amenable to judicial review:[34] I discern that much of Ms Taylor's documentation relates to herdissatisfaction with the decision of the Ministry of 29 September 2016 toremove her additional power costs from the calculation of her DisabilityAllowance payment on the basis that Ms Taylor was not using more electricitythan the single 'normal' group she was being compared with in thePowerswitch calculator. However, the Ministry quickly acknowledged it hadmade an error and reassessed Ms Taylor's entitlements in accordance with themethodology upheld by Whata J. Therefore, the decision of 29 September2016 is spent. It has no effect on Ms Taylor. It does not matter that thedecision might have failed to address all of Ms Taylor's arguments on the useof the Powerswitch calculator. If the process by which the Ministry consultedwith Ms Taylor prior to making its decision of 29 September 2016 was flawed,that does not provide a ground for judicial review either. The decision of29 September 2016 was acknowledged to be wrong and was superseded bythe Ministry's October 2016 decision.[35] In my view, it is the October 2016 decision which can be examinedon judicial review. I adopt Palmer J's formulation of the issues [relating to theOctober 2016 decision] [29] The Judge then proceeded to consider the October 2016 decision. He rejectedMs Taylor's general complaint that the decision was wrong: although an outcome canbe relevant in judicial review if based on an error of fact or so perverse that it cannotbe allowed to stand, the Judge considered that the evidence did not establish eitherground.23[30] The Judge turned to consider whether the MSD had failed to take into accountrelevant considerations or taken into account irrelevant considerations. As to theformer, the Judge had before him evidence from the MSD about the methodology usedto determine the extent to which Ms Taylor had "additional [power costs] of anongoing kind arising from [her] disability".24 That methodology involved use of thePowerswitch website and the 15 per cent methodology that Whata J had sanctioned.23 At [36].24 SSA 1964, s 69C(2A)(a).[31] Brewer J recorded Ms Taylor's argument that the MSD was required to use theMAP formula so that the 15 per cent methodology approved by Whata J and used bythe MSD in its October 2016 decision was not available.25 He rejected that argument,agreeing with Whata J that the MAP was merely an internal guideline or guidancedocument and not binding on the MSD.26 He concluded that the MSD had consideredthe factors that were relevant to the exercise of its power to determine Ms Taylor'sbenefit entitlements.27[32] As to whether irrelevant considerations had been taken into account, the Judgenoted Ms Taylor's argument that the 15 per cent methodology was not available butrejected the argument on the basis that the Ministry had to take into account Whata J'sdecision.28[33] Finally, the Judge considered whether the MSD had fettered its discretion byadopting a rigid approach and not properly considering Ms Taylor's arguments.However, he considered that the arguments advanced by Ms Taylor related to theSeptember 2016 decision which was not in issue before him. He was satisfied on theevidence before him that the MSD had not closed its mind to Ms Taylor'scircumstances in making the October 2016 decision.29AppealScope of appeal[34] It was evident from Ms Taylor's written synopsis and oral argument that herreal complaint is that the Judge did not address the issues she had identified in herpleadings and submissions. Ms Taylor is concerned with the MSD's use of thePowerswitch calculator generally, not merely the decisions the MSD had made abouther own entitlements. To the extent that she is concerned about her own position, herarguments were directed towards steps taken by the MSD prior to the October 2016decision.25 Decision under appeal, above n 1, at [44].26 At [45].27 At [47].28 At [48]–[49].29 At [50]–[53].[35] In her written synopsis filed for the purposes of the appeal, Ms Taylor said:Whata J did not find against me – his decision was for the use of Powerswitchas a quantitative methodology if the Ministry decided to opt for it instead ofthe 15% of usage methodology My claim is that the error was that it was the use of the wrong Powerswitchmethod, not the failure to use the 15% of usage methodology The only reasons that my Statements of Claim and other documents are'unclear' to the respondent and the courts is that they have not grasped thatthe substantive matter is whether the Ministry is properly and accuratelycalculating disability entitlements using practices of integrity, not just formyself but for all other applicants.In a nutshell, my case is this: The Ministry is depriving all disabled applicants[of] extra power for heating by comparing their actual usage with a figurewhich does not represent the usage of 'a person in similar circumstances butwithout the disability', which is what the legislation requires. They achievethis by using a Powerswitch estimate of what their clients' usage would coston other plans rather than what the usage of such a person would be. In mycase, during an internal review and instead of replacing this method with oneapproved and verified by my Accountant, they attempted to replace thismethod with a 15% of usage methodology which was irrelevant as it wasspent, they had not taken up the method when it was offered, it was not partof their Map for assessment of additional power and not available to any otherapplicant. In short, it is not an issue. Therefore, I would like the Ministry torespond to the original charge – that 'their' Powerswitch method will not resultin the subtrahend required by legislation. The main issue is whether the Ministry, in assessing whether clients are usingadditional power, is using the Powerswitch website calculator in a way whichwill result in the required subtrahend.The second issue is whether the Ministry properly reviewed the decisions Irequested.The third issue is whether the actions taken by the Ministry upon overturningthe original decision were appropriate as required by the Review of Decisionflowcharts.(Emphasis in original.)[36] Brewer J made no error in determining the proceedings by reference to theissues settled by Palmer J. There was, therefore, no error in his refusing to engagewith Ms Taylor's arguments regarding the use of the Powerswitch calculator or theSeptember 2016 decision.[37] Having said that, however, we can make some observations that may assistMs Taylor's understanding of the approach taken by the Judge. We start withMs Taylor's generalised concern about the way the MSD uses the Powerswitchcalculator generally, i.e. in relation to all its clients. A person is not necessarilyprecluded from challenging the decisions or actions of a government department thatdo not directly affect them if there is a legitimate public interest in doing so.30 But,fatally, Ms Taylor has not identified a specific decision or action that could bejudicially reviewed.[38] Ms Taylor relied on Edwards J's statement that the use of the Powerswitchcalculator was amenable to judicial review as supporting her position that the issueshould have been considered. But Edwards J went on to make clear that, whilst theuse of the Powerswitch calculator could be amenable to judicial review, that couldonly happen in the context of an identifiable decision that could be reviewed.31[39] As to the September 2016 decision (and the various decisions and actions thatled to that decision), Whata J's decision (and this Court's refusal to grant leave toappeal it) means that it can no longer be challenged. An important principle in alllitigation is finality — a final judicial determination is not to be subverted by collateralchallenge in further proceedings on the same subject matter.32 Ms Taylor cannotreopen the issues determined by Whata J.Brewer J's decision[40] We turn to the Judge's determination of the issues identified by Palmer J.Ms Taylor's submissions before us focused on what she perceived the issues to be,namely the way the MSD is using the Powerswitch calculator to calculate disabilityallowances. For the reasons already discussed, these arguments did not engage with30 Jeffries v Attorney-General [2010] NZCA 38 at [70].31 Strike out decision, above n 14, at [43].32 Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [2].the issues that Brewer J was determining. Ms Taylor did not identify specific errorsin the way the Judge dealt with the issues that the Judge was required to consider.[41] Mr Bryant, for the Crown, made submissions in support of the Judge'sdecision, canvassing the Judge's treatment of issues on orthodox judicial reviewprinciples.[42] Having reviewed the issues and the Judge's decision, we are satisfied that thereis no apparent error in the decision itself.Was the hearing fair?[43] Ms Taylor complains that the way the hearing was conducted was unfairbecause it was conducted by telephone. She says that she was entitled to an in-personhearing and that her inability to appear in person disadvantaged her in some specificways. More generally, Ms Taylor made submissions to the effect that natural justicerequired an in-person hearing open to the public.[44] Court hearings are, save for specified circumstances, required to be held in acourtroom which is open to the public. In this case, r 3.4A(1) of the High Court(COVID-19 Preparedness) Amendment Rules 2020 permitted the Court to direct thatthe hearing be conducted by telephone. But the rules did not require a hearing in thatform and, in our view, it was inappropriate in this case.[45] Ms Taylor's specific complaints regarding the lack of an in-person hearing areunsustainable. The fact that she could not view the Court's file made no difference;she did not identify any document on the Court file that could have altered her positionat a hearing. Not being able to use a Powerpoint or whiteboard presentation to showthe Court how the Powerswitch calculator worked would have made no differencebecause the issues as they had been settled by Palmer J would not have required suchpresentation. Nor were the facts that witnesses could not be called or a juryempanelled relevant. Judicial review proceedings generally proceed on the basis ofaffidavit evidence and they cannot be heard before a jury.3333 Senior Courts Act, s 16(6).[46] We do, however, accept Ms Taylor's complaint that it was unfair to require herto proceed by telephone. A short hearing can be conducted fairly by telephone if thecircumstances require it. But generally a telephone hearing is an unsatisfactory way ofconducting a hearing of some length, especially when one party is unrepresented.A half day telephone hearing for an unrepresented litigant would be onerous.Moreover, there was no urgency that required a hearing by telephone. Ms Taylor isjustified in feeling aggrieved at being required to proceed in these circumstances.[47] Nevertheless, this is not a matter that warrants setting aside the decision anddirecting a fresh hearing. Ms Taylor's concerns cannot be resolved in the context ofjudicial review proceedings. Because of the inevitability of the outcome of any furtherhearing, we are satisfied that no miscarriage of justice arises as a result of the way thehearing proceeded.Result[48] The appeal is dismissed.[49] We make no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent